24 S.E. 210 (N.C. 1896), Lee v. McKoy

Citation:24 S.E. 210, 118 N.C. 518
Opinion Judge:CLARK, J.
Party Name:LEE et al. v. McKOY et al.
Attorney:T. M. Lee, R. O. Burton, and J. D. Kerr, for appellants. H. E. Faison and Allen & Dortch, for appellees.
Case Date:March 24, 1896
Court:Supreme Court of North Carolina
 
FREE EXCERPT

Page 210

24 S.E. 210 (N.C. 1896)

118 N.C. 518

LEE et al.

v.

McKOY et al.

Supreme Court of North Carolina

March 24, 1896

Appeal from superior court, Sampson county; Graham, Judge.

Action by A. M. Lee and others against L. A. McKoy, executrix, and others, in the nature of a creditors' bill. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

T. M. Lee, R. O. Burton, and J. D. Kerr, for appellants.

H. E. Faison and Allen & Dortch, for appellees.

CLARK, J.

Code, § 162, provides that if, after a cause of action accrues against any person, he shall depart from and reside out of the state, or remain continuously absent from the state for the space of one year or more, the time of his absence shall not be counted as any part of the time limited for the commencement of the action. When a person becomes a nonresident of the state, it is not necessary that he should remain continuously out of the state one year to stop the running of the statute, nor would occasional visits to the state put the statute in motion. Armfield v. Moore, 97 N.C. 34, 2 S.E. 347. While he is a nonresident, and from the time he becomes such, the statute is ipso facto suspended. When a person, though still retaining his residence in the state, is continuously absent from it for one year, the statute is suspended during such continued absence. Armfield v. Moore, supra. His honor erred in putting only the latter theory to the jury. There being evidence tending to show that Thomas H. McKoy was a nonresident of the state, it was error to instruct the jury that, if he had not been continuously absent from the state for more than one year, the statute had not been suspended. If the party is a nonresident of the state when the cause of action accrues, the "return to the state," specified by section 162 as necessary to put the statute in motion, is a return with a view to residence, not a casual appearance in the state, passing through it, or even making a visit here. Armfield v. Moore, supra. The instruction was also erroneous in charging that, if Thomas H. McKoy had not been continuously absent from the state for one year, the causes of action were barred, for the further reason that, judgment having been obtained against the administratrix,

Page 211

on two of the claims, within seven years next after her qualification, and there being no exception to the finding of fact by the...

To continue reading

FREE SIGN UP